John Doe and Jane Doe v. Brady Smith, Dianne Shepard, Kathryn Fletcher

COFFEY, Circuit Judge.

Concurring in the judgment remanding the case for a new trial and dissenting with respect to the Majority’s Opinion, Section I.B.2. entitled “Admissibility of Brady Smith’s 2001 Conviction for Indecent Solicitation of a Minor.” In my view, Smith’s 2002 conviction for indecent solicitation of a minor over the telephone does not constitute an “offense of sexual assault” under Rule 413(d) of the Federal Rules of Evidence. Thus, I agree with the magistrate judge’s1 conclusion that evidence of Smith’s solicitation conviction was not admissible in Smith’s civil trial.

In 2001, two African-American students at the Franklin Middle School in Cham-paign, Illinois informed the local police department that Brady Smith, the school’s Dean of Students, had propositioned them individually (each one on separate occasions) for sex. The record reflects that one of the boys told authorities that Smith had offered him $10 if he would “show himself.” The other boy claimed that Smith in one instance had asked him for sexual favors (undisclosed), allegedly stating that the boy “owed him a favor” because he helped him pass the eighth grade. Based on this information, the police obtained a wiretap warrant authorizing the installation of a recording device on Smith’s home telephone. See 725 ILCS 5/108A-1. With the cooperation of one of the boys, the police recorded a telephone conversation that corroborated the boy’s story. Smith was subsequently charged with three crimes: (1) aggravated sexual assault; (2) sexual misconduct; and (3) indecent solicitation of a minor. Those charges were later dropped as part of a plea agreement and Smith agreed to plead guilty to one count of indecent solicitation of a minor over the telephone, in violation of 720 ILCS 5/11-6(a).

On July 31, 2001, one of Smith’s alleged victims (identified as “John Doe”) and his mother (identified as “Jane Doe”) filed this civil suit seeking to recover monetary damages in the United States District Court for the Central District of Illinois. The Does claimed inter alia that Smith and the Champaign School District violated Title VI of the Civil Rights Act of 1964, Title IX of the federal Education Amendments Act of 1972, and the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. At trial, the Does sought to introduce in evidence Smith’s 2001 Illinois state conviction for soliciting a minor for sex. Smith filed a motion in limine to exclude from evidence any testimony concerning his Illinois state conviction, arguing that any evidence concerning the 2001 conviction was inadmissible evidence of a previous “offense of sexual assault” 2 under the Federal Rules of Evidence. See Fed. R.Evid. 413(d), 415. The magistrate judge3 agreed and granted the defendant-appellee Smith’s motion, finding that Smith’s previous conviction under Illinois Statute 720 ILCS 5/11-6(a) did “not consti*350tute an offense of sexual assault as defined in Rule 413[ (d) ].”4 The majority would have us reverse the magistrate judge’s ruling and goes on to conclude that Smith’s prior conviction for indecent solicitation of a minor over the telephone does constitute an attempted “offense of sexual assault” under Rules 415 and 413(d) and thus admissible at trial. I disagree.

I. DISCUSSION

In order for a prior criminal conviction to be admissible in a civil trial in federal court against a person for “conduct constituting an offense of sexual assault or child molestation,” it is required that the previous attempt comport with the definition of an “offense of sexual assault,” as set in the Federal Rules of Evidence. Fed.R.Evid. 415. According to Rule 413(d), the “offense of sexual assault” is defined as

(1) any conduct proscribed by chapter 109A of title 18, United States Code;
(2) contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part of another person’s body; (Ip) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-a).

In contrast, the Illinois statute under which Smith was convicted in 2001 makes illegal the “indecent solicitation of a child ... with the intent of [committing] aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse.” 720 ILCS 5/11-6(a). The majority attempts to shoehorn Smith’s 2001 conviction for indecent solicitation of a minor into Federal Rule of Evidence 413(d)’s definition of a sexual assault by holding “Smith’s solicitation of a child [over the telephone] ... constituted an attempt to commit a sexual offense against a minor,” and thus was admissible. Majority Opinion at 346. However, because solicitation per se cannot constitute an attempt, ie., without a “substantial act” in furtherance of the intended crime, and since there is no evidence in the record to suggest that Smith did anything except converse over the telephone, I disagree. See infra pp. 351-55.

In support of the majority’s conclusion that solicitation per se constitutes an “attempt” under Rule 413(d), it cites two decisions of this court which, although they may be considered somewhat analogous, are distinguishable. See, e.g., Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005); Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 766 (7th Cir.2005). For example, Gattem v. Gonzales was a review of a removal decision under the Immigration and Naturalization Act, 8 U.S.C. § 101 et seq. While we held that the petitioner’s prior conviction for solicitation constituted “sexual abuse,” that decision was made in an immigration case under 8 U.S.C. § 1101 and 18 U.S.C. § 3509(a)(8), which defines “sexual abuse” much more expansively than Rule 413(d). Compare 18 U.S.C. § 3509(a)(8), with Fed.R.Evid. 413(d); see Gattem, 412 F.3d at 764-65. As we recognized in Gattem, 18 U.S.C. § 3509(a)(8), *351“broadly defines sexual abuse to include, among other things, the ‘inducement’ of a child to engage in a sexual act as well as ‘other form[s] of sexual exploitation of children.’ ”5 Id. at 761-62. In contrast, Rule 413(d) is more limited in scope and, see supra p. 349, isn’t nearly as all-inclusive and/or broad as § 3509(a)(8) in its definition of what constitutes sexual assault and conspicuously does not include the terms “persuasion, inducement, enticement, or coercion.” 18 U.S.C. § 3509(a)(8).6 Thus, while the solicitation of a sex act over the telephone alone may conceivably, under certain circumstances, be sufficient to constitute an attempt to persuade, induce or entice a minor into a sex act under 18 U.S.C. § 3509(a)(8), the same cannot be said for Rule 413(d) which requires proof of an attempt to commit actual sexual assault.

While the cases which the majority relies upon, Hernandez-Alvarez and Gattem, were not decided under the Federal Rules of Evidence, the Eighth Circuit has addressed this precise issue, of whether solicitation of a sex act amounts to an “attempt” pursuant to Rule 413(d), and has held that it does not. See United States v. Blue Bird, 372 F.3d 989, 992-95 (8th Cir.2004). In Blue Bird, a witness for the government testified that when she was fourteen years of age she was approached by the defendant, Blue Bird, and solicited for sex. Id. at 992. Specifically, the girl stated that while she was resting on a couch, Blue Bird, “held her hand, rubbed her stomach, pushed her t-shirt up to just below her breasts, kissed her, and said, ‘Let’s do it.’ ” Id. at 992. The girl understood these actions and words to be a manifestation of his intention to engage in a sex act with her. See id. She responded by telling Blue Bird that she was not interested and he did nothing more.7 See id. Applying the Rule 413(d) definition of the “offense [of] sexual assault,” the Eighth Circuit concluded that while Blue Bird “solicited some kind of sexual contact ... [J[w]ithout some more substantial step ... this conduct cannot constitute an attempted ‘sexual act’ or an attempt to engage in ‘sexual contact. ’ ’’(emphasis added).8

I believe that the Eighth Circuit’s approach is well advised and is the more prudent approach. And, we should apply similar reasoning in this case. For the *352Eighth Circuit’s decision in Blue Bird is much more in line with the Congressional intent underlying Rules 415 and 413(d) than that proposed by the majority. While there are federal statutes, such as 18 U.S.C. § 3509(a)(8) and 18 U.S.C. § 2422(b), which criminalize solicitation per se, without an additional “substantial act,” solicitation per se does not constitute attempted sexual assault under Rule 413(d). Numerous authorities, both scholarly and judicial, have long recognized that “the mere act of solicitation does not constitute an attempt to commit the crime solicited.” 4 Charles E. Torcia, Wharton’s Criminal Law § 672; see Graham v. People, 181 Ill. 477, 55 N.E. 179, 182 (1899) (“[M]ere solicitations do not prove an attempt”); State v. O’Neil, 65 Conn.App. 145, 782 A.2d 209, 216 (2001) (“There has been much debate whether mere solicitation constitutes an attempt .... Most courts will answer ‘no.’ ”) (quoting P. Low, Criminal Law 289 (1984)); State v. Otto, 102 Idaho 250, 629 P.2d 646, 649 (1981). Under criminal law, an attempt requires something more than thoughts or words; an attempt requires that the defendant undertake a “substantial act” in furtherance of the intended crime, ie., sexual assault. As this court has previously held, “[a] substantial step is something more than mere preparation, but less than the last act necessary before the actual commission of the substantive crime.” United States v. Barnes, 230 F.3d 311, 315 (7th Cir.2000). The specific state law the defendant-appellee Smith before us was convicted of violating punishes solicitation only, and though this solicitation over the phone violated Illinois’ statute prohibiting indecent solicitation of a minor, 720 ILCS 5/11—6(a), it does not fit within the parameters (limits) of Rule 413(d)’s definition of an “offense of sexual assault.” Indeed, in the case before us, the evidence in the record establishes only that Smith solicited a minor for a sex act over the telephone. Even were we to assume that Smith had the intent to commit the crime of sexual assault, the record falls far short of establishing that there was a “substantial act” in furtherance of the alleged planned and/or intended crime.9 While I do not condone any of Smith’s actions (in fact I condemn them), the record is barren of any evidence which would suggest that Smith did anything in this case but talk salaciously with and solicit a minor over the telephone— and words alone do not rise to the level of being legally sufficient to constitute a “substantial act” in furtherance of the crime of sexual assault. See, e.g., State v. Molasky, 765 S.W.2d 597, 602 (Mo.1989) (en banc) (in order for solicitation to rise to the level of an attempt, it must be accompanied by an attenuated substantial act: “An act, whether it be making a cash payment, delivering a weapon, [journeying to] a crime scene, waiting for a victim, etc., has [to have] accompanied the conversation, thus evidencing the seriousness of purpose, and making the planned crime closer to fruition.”); see also Ford v. State, 612 So.2d 1317, 1320 (Ala.Crim.App.1992) (holding that “solicitation must be accompanied by an overt act, ie., ‘a direct movement toward the commission [of the intended crime] after all the preparations are made.’ ”).

This point is illustrated by the fact that the Illinois statute that Smith pleaded guilty to in Illinois State court essentially criminalizes intent alone. See 720 ILCS 5/11—6(a). Illinois statute 720 ILCS 5/11— *3536(a) does not require that a “substantial act” in furtherance of the intended sex crime be performed and the record before us is barren and devoid of any such act. Indeed, such a requirement would be redundant, for intent in addition to a “substantial act” in furtherance of the crime would amount to attempted sexual assault, and thus 720 ILCS 5/11-6(a) would become superfluous. See, e.g., 4 Wharton’s Criminal Law § 672 (stating that in jurisdictions, such as Illinois, that have statutes that specifically criminalize solicitation, “the imposition of ‘attempt’ liability ... would constitute a circumvention of the ... legislative intent to the contrary”).

The proposition that mere solicitation should not be classified as an attempt is further supported by the so-called “cyber-molestor” cases. As the Eighth Circuit pointed out in Blue Bird, supra, the cyber-molestor cases are distinguishable from cases such as Smith’s. See Blue Bird, 372 F.3d at 993. The defendants in the cyber-molestor cases have, without exception, engaged in something more than solicitation alone, such as substantial travel or the like to meet with the intended victim or the predator has been prosecuted under a statute which specifically recites and incorporates solicitation as an element of the crime, such as 18 U.S.C. § 2422(b). See, e.g., United States v. Mitchell, 353 F.3d 552, 553-54 (7th Cir.2003) (defendant traveled from Indiana to Illinois with the intent to engage in sexual activity with what he thought was a fourteen-year-old); United States v. Bailey, 228 F.3d 637, 640 (6th Cir.2000) (defendant prosecuted under 18 U.S.C. § 2422(b)).10 The majority misinterprets these decisions when stating that some “courts have more liberally defined what constitutes a substantial step to commit a sex offense against a child in so-called cyber-molestor cases.” Majority Opinion at 345. The reason that courts have interpreted what constitutes a “substantial step” more liberally in those cases is that most cybermolestor cases prosecuted in federal court are brought under statutes such as 18 U.S.C. § 2422(b), which specifically incorporate actions that amount to solicitation into the statute. See Mitchell, 353 F.3d at 553-54; United States v. Murrell, 368 F.3d 1283, 1287-88 (11th Cir.2004). To support its untenable position, the majority cites to United States v. Murrell for the proposition that solicitation of a minor for sex over the internet “constituted a substantial step to commit a sex act against a child.” Majority Opinion at 345. However, contrary to the majority’s reading of Murrell, what the Eleventh Circuit actually held in that case is that, under 18 U.S.C. § 2422(b) (not under Rule 413(d)), the defendant “took a substantial step toward inducing a minor to engage in illicit sexual acts, thereby satisfying the second element of criminal attempt.” The statutory language of Rule 413(d) does not encompass crimes of inducement (unlike 18 U.S.C. § 2422), thus while solicitation alone may constitute a substantial step toward the commission of an offense under § 2422, it does not constitute an attempted “offense of sexual assault” under Rule 413(d). Murrell, 368 F.3d at 1288 (emphasis added); Fed.R.Evid. 413(d). Just as this court has refused to read additional terms into a contract, we are obligated not to read additional language into the very specific statutory elements of legislation such as Rule *354413(d)11 simply to accomplish a desired result. See generally Heller v. Equitable Life Assurance Society, 833 F.2d 1253, 1257 (7th Cir.1987) (“In the absence of a clear, unequivocal and specific contractual requirement that the insured is obligated to undergo surgery to attempt to minimize his disability, we refuse to order the same. To hold otherwise and to impose such a requirement would, in effect, enlarge the terms of the policy beyond those clearly defined in the policy agreed to by the parties.”); Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir.1994) (“We [are obligated to] apply the law as Congress drafted it. We should not disregard plain statutory language in order to impose on the statute what we may consider a more reasonable meaning.”). An attempted “offense of sexual assault” as defined by Rule 413(d) and inducement under § 2422 are separate and distinct crimes, each requiring different elements of proof.

The majority, in an attempt to manufacture a “substantial act,” states that Smith “called a middle school student to his office and offered the boy $10 to expose himself.” See Majority Opinion at 345. In its attempt to have Smith’s previous conviction fit within the parameters of Rule 413(d), the majority posits that: “Undoubtedly, calling the minor to the dean’s office and telling him to expose himself for money evinces Smith’s intent and substantial step toward sexual assault.” However, the alleged unsubstantiated acts recounted above,12 although most repugnant, were never presented to the magistrate judge as a basis for the motion in limine under review and are completely unrelated to Smith’s conviction for indecent telephone solicitation of a child under 720 ILCS 5/11—6(a), and only serve to confuse the issue. Defendant-appellee Smith’s motion in li-mine only concerned the introduction into evidence of Smith’s conviction for indecent solicitation of a minor over the phone in violation of 720 ILCS 5/11—6(a),13 and our review concerns only that conviction. Any criminal activities that Smith allegedly engaged in which are unrelated and not a part of his conviction under 720 ILCS 5/11-6(a) for indecent solicitation of a minor have no bearing on whether that conviction constitutes an attempted “offense of sexual assault” within the meaning of Rules 413(d) and 415(a) of the Federal Rules of Evidence.

As stated supra, while we recognize that Smith’s previous conviction for solicitation of a minor via the telephone is morally reprehensible, repulsive and indeed constituted a criminal act in Illinois, it falls short of satisfying the definition of an attempted “sexual assault” under Rule 413(d). Had Congress intended to permit the introduction of evidence concerning previous *355crimes, such as those that encompass an attempt to persuade, induce, coerce or entice a minor into a sex act, into the confines of the definition of an “offense of sexual assault” it would have specifically accomplished this by incorporating such language into Rule 413(d). In fact, evidence of the Congressional intent to include such elements in the definition of sexual assault in a similar statute is evinced by the plain language of statutes such as 18 U.S.C. § 3509(a)(8) which specifically criminalizes the “persuasion, inducement, enticement, or coercion” of sexual acts with a minor. However, these laws are much broader and more all-encompassing than Rule 413(d), which conspicuously does not include solicitation in its definition of “offense[s] of sexual assault.” The omission of this language in Rule 413(d), reflects the clear intent of Congress to strictly limit the introduction of potentially prejudicial information concerning a defendant’s previous crimes only to the circumstances enumerated in the rule. As the Supreme Court stated in Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452-53, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002): It is a general principle of statutory construction that when Congress has seen fit to “include particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. As such, the magistrate judge’s ruling barring the Does from introducing into evidence Smith’s prior conviction, which was for solicitation only, was entirely proper.

What’s more, the majority’s conclusion that solicitation alone is sufficient to establish an attempt could very well have a deleterious effect on this court’s criminal jurisprudence were it to become the law of this circuit. For instance, under the majority’s reasoning, solicitation of a murder over the telephone would constitute attempted murder. This would represent an unwarranted expansion of criminal law, for the Supreme Court has long defined an attempt as requiring an “overt act” in furtherance of a crime. As the Supreme Court stated in Spectrum Sports, Inc. v. McQuillan, “combination, intention and overt act may all be present without amounting to a criminal attempt.” 506 U.S. 447, 455 n. 7, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (citing Swift and Co. v. United States, 196 U.S. 375, 387-88, 25 S.Ct. 276, 49 L.Ed. 518 (1905)). It has been well-settled law in Illinois for over 100 years that “mere solicitations do not prove an attempt.” Graham v. People, 181 Ill. 477, 55 N.E. 179, 182 (1899). In enacting a statute such as 720 ILCS 5/11— 6(a), the Illinois Legislature implicitly recognized that solicitation alone should not amount to sexual assault and, in order to protect minors from predators in an increasingly technological society, had the insight to criminalize solicitation alone. It is not our place to expand the Illinois statute to encompass an attempt to commit sexual assault, nor should we expand Rule 413(d) beyond the limits that Congress intended to include solicitation. As it has been correctly stated time and again, it is this court’s place to interpret the law as written, not to substitute our judgment for that of the legislature. See, e.g., Jenkins v. Heintz, 25 F.3d 536, 539 (7th Cir.1994). Solicitation per se is beyond the bounds of an attempted “offense of sexual assault” pursuant to the clear language of Rule 413(d), and thus Smith’s 2001 Illinois State conviction for solicitation was properly excluded by the magistrate judge from evidence at trial.

. All of the parties to the case signed a waiver pursuant to 28 U.S.C. § 636(c) allowing Magistrate Judge Bernthal to conduct "any and all proceedings in [the] case."

. The defendants-appellees also claimed that evidence of Smith’s 2001 Illinois state conviction was irrelevant and overly prejudicial under Rules 403 and 404(b) of the Federal Rules of Evidence.

.Evidentiary rulings in this case were assigned to Magistrate Judge David G. Bernthal.

. Alternately, the magistrate judge concluded that the evidence of Smith's conviction was precluded by Rule 404(b). In so finding, the judge concluded that such evidence would be used to prove “the character of a person in order to show action in conformity therewith,” which is prohibited by Rule 404(b).

. Solicitation refers strictly to the “act or instance of requesting or seeking to obtain something,” while inducement refers to "persuading or enticing another person to take a certain course of action.” Black's Law Dictionary 1399, 779 (7th ed.1999).

. Similarly, Hemandez-Alvarez was also an immigration case decided under 8 U.S.C. § 1101; 432 F.3d at 766. Although the Hernandez-Alvarez panel did not specifically state that it was deciding the case under the broad definition of “sexual abuse” contained in 18 U.S.C. § 3509(a)(8), the decision was based primarily on this court's previous ruling in Gattem. See id. at 766. As such, reliance on § 3509(a)(8) may be implied.

. Like Blue Bird, the record before us reveals that Smith solicited a minor on the telephone and nothing more.

.The Eighth Circuit also addressed the testimony of another witness who claimed that Blue Bird had solicited her for sex, again finding that his actions did not rise to the level of an attempted or actual sexual assault under Rule 413(d) without a more "substantial act.” Blue Bird, 372 F.3d at 993. The second witness testified that when she was seven years old Blue Bird, “who was staying at her house, came into her bedroom, kissed her and attempted to get under her bed covers ... [but desisted] when she told him that she was not interested.” Id. at 992. The court again concluded that although "Blue Bird made sexual overtures to [the witness] ... none of the acts allegedly taken by Blue Bird constituted 'sexual contact' or a 'sexual act.' ” Id. at 993.

. Any affirmative acts Smith did undertake, such as picking up the phone, dialing it, and so forth were acts that occurred in furtherance of, and in preparation for, the solicitation and do not constitute substantial acts in furtherance of an "offense of sexual assault” under Rule 413(d).

. However, Smith was not charged with violating 18 U.S.C. § 2422, and even if he were in violation of that statute, based on the same facts that we have in this case, his acts would not fit within the parameters of Fed.R.Evid. 413(d)’s definition of an “offense of sexual assault.’’

. Which does not include solicitation in its definition of an "offense of sexual assault.”

. Smith was initially charged with aggravated sexual assault, sexual misconduct and indecent solicitation. However, in accordance with his plea bargain, the aggravated sexual assault and sexual misconduct charges were dropped and Smith pleaded guilty only to one count of indecent solicitation of a child, in violation of 720 ILCS 5/11—6(a). See supra p. 348. Thus, Smith was never convicted of aggravated sexual assault or sexual misconduct, and those alleged criminal acts convictions are not before us.

.The content of the telephone conversation which served as the basis for Smith's conviction under 720 ILCS 5/11-6(a) does not appear in the record on appeal, and this court has no way of knowing what Smith said to the minor. The record only reveals that Smith was convicted of violating 720 ILCS 5/11-6(a) which makes it illegal for "[a] person of the age of 17 years and upwards ... [to] knowingly solicit a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct.”